OhTheBill has been my online name since the beginning of the internet. This is my personal sounding board. I publish the things that are important to me, and sometimes stories about my life.

Wednesday, February 6, 2013

Drones, Assassinations and You

So this issue of drone strikes has come up, thankfully, in the last few days. The memo that everyone is talking about in this briefing is at the very end of this entry. I certainly can't with any authority question the President of the United States but this seems a little fishy to me and always has. There is a procedure, in which the Counterterrorism Advisor to the President has a list of people that the United States deems to be a threat. Upon further reflection they go revise the list blah blah blah, and then order the drones to kill the people. The question always has been, what's the process, is there any oversight (the answer to the latter is no) and what happens when a United States citizen finds themselves on the list which has happened in the past. Here's the video of the press conference, but I have taken the parts of the transcript and questions that deal with the drone strikes and this white paper and copied them below.

MR. CARNEY: Thanks for being here. I was hoping to skip the briefing today, but apparently I'm here to take your questions.

Julie.

Q Thank you. How can the government determine that an American citizen is an imminent threat to the U.S. or U.S. interests without having any kind of specific evidence that that person is planning an immediate -- an attack in the immediate future?

MR. CARNEY: Well, the question, obviously, that you ask relates to some stories out today regarding a document prepared -- an unclassified document prepared for some members of Congress -- and understandable questions. And I can just say that this President takes his responsibilities very seriously, and first and foremost, that’s his responsibility, to protect the United States and American citizens. He also takes his responsibility in conducting the war against al Qaeda as authorized by Congress in a way that is fully consistent with our Constitution and all the applicable laws.

We have acknowledged, the United States, that sometimes we use remotely piloted aircraft to conduct targeted strikes against specific al Qaeda terrorists in order to prevent attacks on the United States and to save American lives. We conduct those strikes because they are necessary to mitigate ongoing actual threats, to stop plots, prevent future attacks, and, again, save American lives. These strikes are legal, they are ethical and they are wise. The U.S. government takes great care in deciding to pursue an al Qaeda terrorist, to ensure precision and to avoid loss of innocent life.

As you know, in spite of these stories -- or prior to these stories, this administration, through numerous senior administration officials, including Deputy National Security and Counterterrorism Advisor John Brennan, State Department Legal Advisor Harold Koh, and former Department of Defense General Counsel Jeh Johnson -- have spoken publicly and at length about the U.S. commitment to conducting counterterrorism operations in accordance with all applicable domestic and international law, including the laws of war.

In March 2012, the Attorney General gave a speech at Northwestern University Law School in which he outlined the legal framework that would apply if it was necessary to take a strike against one of the "small number of U.S. citizens who have decided to commit violent acts against their own country from abroad." The Attorney General made clear that in taking such a strike, the government must take into account all relevant constitutional considerations, but that under generations-old legal principles and Supreme Court decisions, U.S. citizenship alone does not make a leader of an enemy force immune from being targeted.

Q But how can the government decide that there’s an imminent threat if there’s no evidence that an attack is happening in the immediate future?

MR. CARNEY: As you know, Congress authorized in an authorization of the use of military force all necessary military force to be used in our fight against al Qaeda. And certainly under that authority, the President acts in the United States' interest to protect the United States and its citizens from al Qaeda.

The nature of the fight against al Qaeda and its affiliates is certainly different from the kinds of conflicts that have involved nations against nations. But this has been discussed amply, again, in the effort that we have made through our senior administration officials to explain the process that we use, by the officials I named -- by John Brennan in a speech, and he addressed this very issue about “imminent.”

I would point you to the now-released -- it was not meant for public release, but it's not classified -- the now-released white paper, which goes into some detail on that very issue.

Q Should the American people be comfortable with the administration's definition of "imminent" if it also means that there is no specific evidence to back that up?

MR. CARNEY: Well, again, I think that what you have in general with al Qaeda senior leadership is a continuing process of plotting against the United States and American citizens, plotting attacks against the United States and American citizens. I think that’s fairly irrefutable.

What you also have is the authorization for the use of military force by Congress. You also have a President who is very mindful of the very questions that you are asking and is, in his capacity as Commander-in-Chief, taking all the necessary steps to ensure that he fulfills his constitutional obligation to protect the United States and its citizens, and does so in a way that comports with our Constitution and with our laws.

Q Did he sign off on this memo and any classified documents to back it up?

MR. CARNEY: Well, I certainly have no information on any classified documents. I don’t know the specific process by which this memo was generated.

......

Q Thank you, Jay. Just to follow on drones. So is there a checklist then that will more narrowly define what "imminent threat" is? Is there a checklist that will be followed?

MR. CARNEY: I would point you to a speech by John Brennan where he talked about this issue. And again, I want to say from the outset, these are important questions and the President takes them very seriously, just as he takes his responsibility to defend the United States and its citizens very seriously.

Mr. Brennan gave a speech in which he talked about this issue of imminent threat. I think I just talked in general terms about the nature of the conflict we have with the terrorists who have set as their goal the killing of Americans and attacks on the United States. And this President and those who work for him are very mindful of the need to fulfill our responsibility to protect the United States and its citizens, and to do so in a way that is consistent with the Constitution and consistent with the laws that apply. And that is certainly something of great importance to the President.

Q So the White House doesn't believe that this is vague in any way?

MR. CARNEY: Again, I would point you to the paper that we've been talking about that generated the stories today, that as a general -- in a general statement of principles on matters related to this, explains some of the legal reasoning that undergirds it.

There’s no question that in the conflict that we have been engaged in with al Qaeda, that as many more sophisticated observers than I have noted, we have significant challenges because of the nature of the attacks, how they’re planned, who plans them. But there is no question that senior operational leaders of al Qaeda are continually planning to attack the United States, to attack American citizens.

Under the authorization of Congress in the war against al Qaeda, the authorization to use military force, it is entirely appropriate for the United States to target senior operational leaders of al Qaeda.

.........

Q The President obviously strongly opposed the enhanced interrogation techniques, so-called, from the Bush administration. He ended them. How is dropping -- how does dropping a bomb on an American citizen without any judicial review, any trial, not raise the very human rights questions, or more human rights questions than something like waterboarding?

MR. CARNEY: Jon, again, as I said, the questions around this issue are important and the President takes them seriously. He takes his responsibility as Commander-in-Chief to protect the United States and its citizens very seriously. He takes the absolute necessity to conduct our war against al Qaeda and its affiliates in a way that’s consistent with the Constitution and our laws very seriously.

It is a matter of fact that Congress authorized the use of military force against al Qaeda. It is a matter of fact that al Qaeda is in a state of war against us and that senior leaders, operational leaders of al Qaeda are continually plotting to attack the United States, plotting to kill American citizens as they did most horrifically on September 11, 2001.

So again I would point you to the speeches that have been given by senior administration officials to the document that we’ve been discussing here, where the reasoning is laid out, and simply make the point that the President understands the gravity of these issues. That is why he is committed to taking very seriously his responsibilities in this and committed to the kind of process that you’ve seen in an effort to communicate publicly about it, elaborated by senior administration officials on numerous occasions.

Q But let’s be clear. This is giving a legal justification for killing American citizens without any trial whatsoever, without any evidence.

MR. CARNEY: Again, I would point you to the ample judicial precedent for the idea that someone who takes up arms against the United States in a war against the United States is an enemy, and therefore could be targeted accordingly. That’s I think established in a number of cases, and I’m not even a lawyer and I’m aware of that.

So having said that, the issues here are important and the President recognizes that. And that’s why he takes these responsibilities so seriously. That’s why he has authorized various senior administration officials to discuss publicly these issues the way that they have, and why I believe that process will continue.

Q What do you say to the ACLU that calls this a profoundly disturbing document because it gives broad power without checks, without balances?

MR. CARNEY: Again, I would point you to the legal reasoning behind what we are talking about here, and recognize that these are weighty matters that are all about the balancing of imperatives here, the need to defend the United States, defend American citizens against senior al Qaeda officials and affiliated actors who are engaged continually in an effort to attack the United States and American citizens.

So, again, you won’t get a debate with me about whether these are significant matters that merit discussion. But I think you’ve seen in the way that this President has approached them the seriousness with which he takes all of his responsibilities on this.

Q Well, what about -- just one more -- what about the drone strike that killed the 16-year-old son of Awlaki. Does he meet that definition of a senior operational leader as outlined in the white paper?

MR. CARNEY: Well, Jon, I’m not going to talk about individual operations that may or may not have occurred.

What I can talk to you about is the general principle that had been discussed by senior administration officials, the acknowledgement that we’ve made about actions taken in countries like Yemen and Somalia, and the overriding fact that senior operational leaders of al Qaeda have, without question, engaged in plots against the United States and engaged in plots designed to kill Americans, often many, many Americans.

And that’s a reality that a Commander-in-Chief has to confront as part of his constitutional responsibility. And therefore, it is, this President believes, important that we address it in a way that acknowledges those constitutional responsibilities and the responsibility to carry out our war against al Qaeda in a way that is consistent with our values and our laws and our Constitution.

Q What about some kind of review? I mean, you're taking away a U.S. citizen's due process. And nobody is questioning particularly this President's good intentions, but you're establishing a precedent which will last beyond this administration. You're pointing to various legal decisions to back it up, but doesn’t it deserve a broader debate and a broader court hearing?

MR. CARNEY: Well, I don’t know about a specific suggestion like that. I can tell you that the administration has -- and I think this is demonstrated by the public comments of senior administration officials on this matter -- reviewed these issues -- I think that’s demonstrated by the so-called white paper that was published today -- and is continually reviewing these matters. How that process moves forward from here I'm not going to speculate. But, again, going back to what I've said before, we understand that these are weighty matters, that these are serious issues, and they deserve the kind of considered approach that this President has taken to them.

Q Shouldn’t it be considered beyond the executive branch, is what I'm asking.

MR. CARNEY: Well, I'm not going to speculate about how these issues or matters might be considered in the future. What I can tell you is that, internally, they have been reviewed and considered with great care and deliberation.

............

Q Jay, thanks. A group of bipartisan senators, 11 of them wrote a letter to the President asking him to release all of the Justice Department memos relating to the subject of a suspected al Qaeda leader who might be a U.S. citizen as well. Will President Obama release those memos?

MR. CARNEY: I just have nothing for you on alleged memos regarding potentially classified matters.

Q So you can't tell us whether you're going to release --

MR. CARNEY: Again, I just don't have anything for you on that.

Q Can you address the broader question of transparency? The President has obviously talked a lot about the importance of transparency, and here you have a document being leaked, senators calling for more information. Is this transparency?

MR. CARNEY: Well, what I would say is that, as I’ve been saying, with regards to this matter and the issues around it, the President has made clear, as reflected in the statements by and speeches by senior administration officials, that we need to inform the public and explain to the public and to you the process that we’re undertaking and the reasoning behind it. And the white paper that was provided to some members of Congress -- it is unclassified, it’s been released -- is part of that process. And since it is out there, you should read it. I think it’s a click away.

Q It was leaked.

MR. CARNEY: Well, again, it was an unclassified document provided to, as I understand it, members of Congress with a particular oversight responsibility on these issues.

The fact is -- and I encourage you to go back to look the speeches by the Attorney General, by John Brennan, remarks by Jeh Johnson and by Harold Koh on these matters, and I think they provide a pretty voluminous accounting of matters that are treated here with great deliberation and seriousness.

........

Q And then one other thing on the transparency question involving the white paper and the memo. Seeing as how you’ve cited repeatedly today the extent to which administration officials have gone out and talked about the principles, and now you're have a 15-page white paper that kind of lays out the legal arguments, what is the administration's argument against releasing some form of the actual memos, perhaps -- if nothing else, a redacted form that -- since you already have now released both in written and verbal form much of the arguments that undergird them?

MR. CARNEY: Well, I think the discussions that you’ve seen in public, including in the white paper, have to do with general principles that are applied on this important matter. Without going into the alleged existence of any particular memo or action, I can say that what we cannot do is discuss classified operations. It would compromise what tend to be called sources and methods, and would do harm to our national security interests.
The fact of the matter is that the white paper that we’ve discussed was provided -- was developed and produced in an unclassified manner precisely so that those general principles could be spelled out and elaborated -- and I would refer you to Justice as well on this. But that’s precisely why a document like that would be produced.

Q But you will release the white paper? You’ve pointed us to it several times.

MR. CARNEY: I think it’s out there. It’s online.

Q From you? From you?

MR. CARNEY: No, no -- I think it was a news organization that Kristen works for has put it out online.

Q You’ve repeatedly pointed to it, referred to it.

MR. CARNEY: I’m just saying that that document was produced by the administration, provided not for public release but provided to senators who have jurisdiction on these issues last year and for the very purposes of consideration that we’ve been discussing here. And the reason why I can talk about it openly and refer you to it is because it is an unclassified document.

Q But we request that you put it out, Jay.

MR. CARNEY: Put what out?

Q The white paper you’ve referred to dozens of times.

MR. CARNEY: Well, again, I’ll take the question. I’m sure the Justice Department can also take this question. It is out there online.

Q Not the same thing. It’s not.

MR. CARNEY: I take your point.

Ari.

Q You said that U.S. citizenship alone does not make a leader of an enemy force immune from being targeted. Talk about U.S. citizenship plus residency. Why does the U.S. believe it’s legal to kill Americans abroad but not to kill Americans at home without judicial process?

MR. CARNEY: Again, I would point you to the ample material here both in spoken presentations by senior administration officials as well as the much discussed white paper. I’m not a lawyer and these are the kinds of things that are probably best expressed and explained by lawyers. My understanding, for what it’s worth --

Q How would that --

MR. CARNEY: Thank you for your interruption. But there are issues here about, again, that have been discussed and are out there about feasibility of capture that I think are pertinent to that very question.

Q So it’s not --

MR. CARNEY: Again, I’m not a lawyer -- and maybe you are. I bet you are --

Q I’m not. (Laughter.)

MR. CARNEY: But you’d make a very good one. (Laughter.) So I can’t -- it’s not appropriate for me --

Q But it sounds like you’re saying there’s no constitutional distinction; it’s just that capture is feasible in the U.S. and it may not be feasible abroad.

MR. CARNEY: Again, I would look at the reasoning that underpins what we’ve been talking about here, again, available in the presentations made by senior administration officials that got far less attention than this story at the time -- even collectively less attention and fewer questions, even though they were public speeches given, in some cases, before journalists. And it talked about just these issues -- and also the document that we’ve been discussing, which is available.

Q But doesn’t it stand to reason that if imminence is one of the major tests, a plot in the United States conducted by a terrorist leader in the United States would be more imminent than something abroad?
MR. CARNEY: Yes, I think I've addressed this in terms of the general reasoning here and I would point you to the sources that I've just talked about.